Breadcrumbs

(8) Discovery

(a) General Policy and Protective Orders

The Parties are encouraged to engage in voluntary discovery procedures. In connection with document requests, interrogatories, depositions or other means of discovery, the Presiding Officer may make any order which justice requires to protect a Party or Person from annoyance, embarrassment, oppression, or undue burden or expense. Orders may include limitations on the method, time, place and scope of discovery and provisions for protecting the secrecy of confidential information or documents.

(b) Document Request Procedure and Costs

After a request for an Adjudicatory Proceeding has been filed or an order to show cause issued, a Party may serve another Party or Agency with a document request which lists with reasonable specificity items requested for inspection which are in the possession, custody or control of the Party or Agency requested to provide them. A Party or Agency served with a document request shall respond within thirty days or as otherwise determined by the Presiding Officer. The Presiding Officer may require a Party requesting documents to pay the Party or Agency responding to a document request the fee per page determined by the Executive Office for Administration and Finance.

(c) Depositions: When Permitted

After a request for an Adjudicatory Proceeding has been filed or an order to show cause issued, the Presiding Officer may, upon motion by a Party, order the taking of the testimony of any Person by deposition before any officer authorized to administer oaths. The motion shall specify the name and address of each deponent and the reasons for the deposition. The Presiding Officer shall allow the motion only upon showing that the parties have agreed to submit the deposition in lieu of testimony by the witness, or the witness cannot appear before the Presiding Officer without substantial hardship. The motion shall only be allowed upon a showing by the moving Party that the testimony sought is significant, relevant, and not discoverable by alternative means. Motions for depositions shall be considered and acted upon in accordance with 801 CMR 1.01(7)(a).

(d) Depositions: How Taken, Signing

Depositions shall be taken orally before an officer having power to administer oaths. Each deponent shall be duly sworn. In instances where sincere scruple forbids the taking of an oath, a person may affirm with the same legal effect as having been sworn. Any Party shall have the right to cross-examine. The questions asked, the answers given, and any objections shall be recorded. The Presiding Officer shall rule only on objections accompanied by a reason and only in regard to the stated reason. Each deponent shall have the option of reviewing and affirming the deposition transcript and of indicating an affirmance in whole or in part by signing a statement to that effect on the title page of the transcript. The deponent may waive the reviewing and signing, in which case the officer shall state the fact of the waiver in the officer's certification, and the transcript shall then have the same status as if signed by the deponent. Subject to appropriate rulings on objections, the Presiding Officer may receive the deposition in evidence, as if the testimony contained therein had been given by a witness in the proceeding.

(e) Recording by Other than Stenographic Means

The Presiding Officer may on motion permit the testimony at a deposition to be recorded by other than stenographic means, in which event the Presiding Officer's authorization shall designate the manner of recording, preserving, and filing of the record of the deposition and may include other provisions to assure that the recorded testimony will be accurately preserved.

(f) Certification of Transcript

A duplicate transcript of the deposition shall be certified by the officer before whom the deposition was taken. When the deposition is introduced into evidence, the Party requesting the deposition shall order a duplicate copy of the transcript and forward a copy to the Presiding Officer.

(g) Interrogatories

With the approval of the Agency or Presiding Officer, after a request for an Adjudicatory Proceeding has been filed or an order to show cause issued, a Party may serve written interrogatories upon any other Party for the purpose of discovering relevant information not privileged and not previously supplied through voluntary discovery. Interrogatories may be served by Hand Delivery, pre-paid U.S. mail or Electronic Medium. A duplicate of all interrogatories shall be simultaneously filed with the Presiding Officer. No Party, without the approval of the Presiding Officer, shall serve more than a total of 30 interrogatories either concurrently or serially including subsidiary or incidental questions. A Party may not serve any interrogatories less than 45 days before the scheduled hearing, without the approval of the Agency or Presiding Officer.

(h) Answers to Interrogatories

Each interrogatory shall be separately and fully answered under the penalties of perjury, unless an objection to the interrogatory with supporting reasons are stated in lieu of an answer. An answer shall be served within 30 days of receipt of an interrogatory, or within such other time as the Presiding Officer may specify. A duplicate of all answers to interrogatories shall be simultaneously filed with the Presiding Officer.

(i) Motion for Order Compelling Discovery

A Party may file with the Presiding Officer, subject to 801 CMR 1.01(7)(a), a motion to compel discovery if a discovery request is not honored, or only partially honored, or interrogatories or questions at deposition are not fully answered. If the motion is granted and the other Party fails without good cause to obey an order to provide or permit discovery, the Presiding Officer before whom the action is pending may make orders in regard to the failure as are just, including one or more of the following:

An order that designated facts shall be established adversely to the Party failing to comply with the order; or

An order refusing to allow the disobedient Party to support or oppose designated claims or defenses, or prohibiting him or her from introducing evidence on designated matters.

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